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02_PC_MINS_20141028OCTOBER 28, 2014 PLANNING COMMISSION MINUTES (EXCERPT) is being offered to the community, and thanked the Ginsb s, staff and the Commission for their support. Ken Dyda stated he was representing the Rana de los Palos Verdes Historical Society and Museum and explained the histo of this organization, He felt that the Ginsburg's project is a complimentary ext sion of the history his organization is looking at in terms of artifacts. With that, the I rd unanimously voted in support of the project and hoped the Commission would s port it as well. Commissioner Tomblin mov to accept staff's recommendation to continue the public hearing to Novembe 11, 2014, seconded by Commissioner Emenhiser. Commissioner Emenhis suggested that signage and a left turn lane into the property might go a long way t ards avoiding confusion and traffic problems. The motion was af)proved, (7-0). CONTINUED BUSINESS 1. Green Hills Memorial Park Annual Review Director Rojas stated that at the August 26th meeting a Resolution was before the Planning Commission on the Consent Calendar. However, there were quite a few questions asked by the public on what actions the Commission should take regarding Green Hills. In addition, it was at that meeting that staff was able to confirm there were other violations on the Green Hills aside from the mausoleum building. Given that, since the public hearing had been previously closed, the Commission agreed the public hearing should be reopened and directed staff to re -notice the public hearing. He stated staff has re -noticed the public hearing to allow for discussion of all issues related to Green Hills and the Master Plan. He stated that the Commission had also requested a full CUP compliance review by staff which has been included in the staff report. He noted the compliance review was performed by an outside third party consultant, and the Acting City Manager will present that portion of the staff report. Senior Planner Schonborn presented the staff report reviewing the conditions included in the Resolution and pointing out the conditions that have modified from the previous Resolution. He noted that these are operational conditions that staff is recommending be implemented into the operation of Area 11. Commissioner Emenhiser reviewed the condition discussing screening of the northern mausoleum wall with a type of vine. He asked staff if they had discussed this condition with the condominium association as to whether or not they would want to look at vines as opposed to concrete. Senior Planner Schonborn answered that staff had not discussed this with the condominium association. Planning Commission Minutes October 28, 2014 Page 4 Commissioner Tomblin stated there have been letters from Ms. Berkowitz and Green Hills that they have agreed to not sell plots in the northwest corner and other similar items. He asked staff if some of these agreed upon points are reflected in the Resolution. City Attorney Lynch answered that would be part of the Conditional Use Permit and the Variance with respect to whether the Commission is inclined to allow additional internments, or the internments that are already there to remain. She stated that is not currently in the Resolution because staff wanted to get direction from the Commission, Commissioner Tomblin explained that in talking to the State, it was his understanding that a cemetery must file a wet stamped engineered plat map with the County. He questioned if the City should ask for an updated plat map that is reengineered and make that part of the Resolution so that there is no ambiguity, City Attorney Lynch stated that staff has asked Green Hills for an updated copy of the map, which staff has not yet received. Commissioner Tomblin noted that it was his understanding a copy of the map was available from the County. Acting City Manager Petru discussed the compliance review that was requested by the Commission, which was conducted by a third party consultant. She noted the report was included in the Commission's agenda packet. She stated that the consultant concluded that the Green Hills Master Plan overall substantially complies with the Planning Commission's conditions of approval, with several notable exceptions. She explained in the first category, there are two documents that need to be submitted to the City by Green Hills. She briefly explained the two documents, one relating to condition No. 4 and one relating to condition No. 31. The second category discussed by the consultant in their report was certifications. She prefaced this section explaining that the consultant was provided with all of the hard copy files and plans related to Green Hills. However, these records did not include electronic records that are held in the Building and Safety Department. Staff now believes that most of this next group of conditions, there are most likely electronic records on file with the Building and Safety Division that need to be reviewed for further determination of compliance. She briefly discussed these conditions as detailed in the consultant's report. The third area reviewed in the report was related to hours of construction. Ms. Petru noted the consultant found that there is a conflict between the language in the Resolution regarding condition Nos. 20 and 22. She reviewed those two conditions, and noted there needs to be some clarification. Finally, she noted the fourth area discussed in the report was in regards to setbacks, which relates to condition Nos. 6, 7, 8 and 49 within the Resolution. Using an aerial photograph, Ms. Petru identified the areas being discussed, which were the area of in -ground internments in the northwest corner of the cemetery site, the area of the Pacific Terrace Mausoleum, and above -ground structures and crypts along an area at the west property line that are in the required setback. Planning Commission Minutes October 28, 2014 Page 5 Commissioner Gerstner referred to the development of above -ground structures along the west property line, and asked if these structures would have required building permits, and if so, were they obtained. Acting City Manager Petru noted that the trellises in this area would certainly require building permits, but it was a bit more questionable in regards to the above -ground crypts. She explained that when the consultant looks at the electronic files in Building and Safety, they will be looking to see if there are permits on file. Commissioner Tomblin referred to Ms. Berkowitz's October 28th letter in the staff report, and her comments that these walls in reference do not contain any burial or internment. He asked staff if urns were found to be in these walls. Acting City Manager Petru answered that this has not been verified in the field, however in looking at the photographs of the structures, the size and thickness is similar to what is seen on the property containing urns, and some of them do have names inscribed on them. City Attorney Lynch stated that earlier today Ms. Berkowitz confirmed in an email that there are some urns placed within those structures. Commissioner Cruikshank stated that this report was to be considered an independent review, but noted that the answers to some of the conditions included asking Green Hills staff if they were in compliance. He asked if the conditions were verified at the site, or if the consultant was asking the employees if certain things had been done. Stephanie Edmundson (representing Lilley Planning Group) explained that when doing an independent review they must deal with all of the represented parties, and many times the only way to verify the conditions at the site is dealing with the interested parties. She explained that she dealt directly with Nick Resich, who is the superintendent of operations and he, more than anyone, knows the next stage of operations at the property. She stated that she was on site to verify conditions, and can amend the report to reflect that if the Commission so desires. Commissioner Tomblin referred to the October 28th letter from Ms. Berkowitz and suggested that Ms. Edmundson supplement her report and address some of the issues in that letter as the letter is disputing some of the findings in the report. Ms. Edmundson responded that it was her understanding she would be doing some follow-up on the report that will be before the Commission. Commissioner Tomblin noted that Nick Resich is the son of the General Council and Board Member at Green Hills, and he felt it was imperative that there is a very clear verification done by Ms. Edmundson or the Lilley Planning Group of anything that was said by Nick Resich, Planning Commission Minutes October 28, 2014 Page 6 Ms. Edmundson clarified that she was at the site three times and Mr. Resich was only with her on one occasion. She stated she did see things very clearly on her own. Commissioner Tomblin asked Ms. Edmundson, in doing her report, if she went to the County to get a copy of the recorded wet -stamped engineered plat map of Green Hills. Ms. Edmundson answered that she saw the plat maps at Green Hills, Commissioner Tomblin asked Ms. Edmundson if she reviewed those maps to see which ones were in compliance and which were not, based on the fact some of this is in the setback. Ms. Edmundson stated she did not review the maps for setbacks. Commissioner Tomblin asked that, where there are setback violations, the plat map is reviewed and cross referenced. City Attorney Lynch stated staff would look into that issue. Chairman Leon opened the public hearing. Ellen Berkowitz (representing Green Hills) stated she wanted to respond to the repeated claims that Green Hills failed to disclose the fact that the Pacific Terrace Mausoleum was proposed with a setback of eight feet, that somehow Green Hills is at fault for not obtaining a Variance for the mausoleum, and that Green Hills is in violation of the conditions of approval because no Variance was obtained. She referred back to the Master Plan Amendment and all materials submitted to the City in September 2006. She explained that in 2007 when the Planning Commission heard this request, they had all of the materials and plans in their possession. She stated that page 1 of the Master Plan amendment contained a map of the proposed Master Plan showing the Pacific Terrace Mausoleum along the property line. She noted the booklet contained elevations of the mausoleum as well as a schematic showing that burials would occur on the roof of the mausoleum. She also noted the booklet had pictures showing the relation of the proposed site to the Vista Verde condominium complex. She also showed that during that meeting a map depicting the mausoleum and its location was shown on the large screen. She stated the conditions included in the staff report and agenda package expressly stated the mausoleum in Area 11 would be 8 feet from the property line. She stated that never once during the application or hearing process did anyone ever say that a Variance was necessary for the mausoleum, and had the City believed at that time that a Variance was required the City could have, and should have, said so. If the City had requested the Variance Green Hills could have, and would have, applied for one at that time. She felt the City could no longer visit this issue and require Green Hills to apply for a retroactive Variance, years after the fact. She felt that to do so would violate a host of legal principles rooted in the Constitution, including due process and vested rights. She stated that more importantly, it would also mean that Planning Commission Minutes October 28, 2014 Page 7 the City's word, as expressed through its planning process, is for all practical purposes meaningless. She stated the City approved the mausoleum with all of the facts in front of them, and gave its word that the approval was valid. She felt that had to stand for something. Accordingly, she believed that it was in the City's and Green Hills' best interest to find a way to rectify the situation without pointing fingers of blame or hurling accusations. Ms. Berkowitz noted Green Hills has proposed a number of operational conditions, many of which were modified by staff and incorporated into the current Resolution. She commented on one condition of approval in regards to prohibiting pre -service burial service activities before 10 a.m. She explained that if there is a service at 10 a.m. staff usually puts up tents, sets out chairs, and arranges flowers before 10 a.m. She questioned if what was meant by this prohibition was the use of mechanized equipment for pre -service burial preparation, and requested that point be clarified. In regards to the compliance review, Ms. Berkowitz noted that the review states the mausoleum is not in compliance with the CUP conditions because it has a setback of less than 40 feet. However, she noted the CUP condition expressly authorizes the mausoleum to be less than 40 feet from the setback. She stated that whether a Variance was or was not required, or whether the City should or should not have asked for a Variance at that time is a legal opinion. In regards to the structures on the western property line which the review determined are not in compliance with the CUP, she noted that these are family estates that are permitted under sections of the CUP and she questioned what difference it makes whether there are urns or cremated remains within those walls. She stated neither would change the nature of those walls. Ms. Berkowitz noted that recently Green Hills received approval from the Planning Commission to construct additions to their administrative building, which was conditioned upon the completion of construction within a very tight time frame as per the City Council's request, and noted Green Hills is making every effort to move forward as expeditiously as possible on this project. However, she understood that because the City has taken the view that Green Hills is in violation of its CUP because a Variance was never obtain, that the City may not process Green Hills' building permit. She stated Green Hills has not received any official notice of violation and they don't know if the City is going to issue an official notice, but requested that if that is the case that Green Hills get some advice on that topic as soon as possible. Ms. Berkowitz stated Green Hills would very much like to resolve these issues amicably. She stated that why and how things have escalated to this level is not of Green Hills choosing. She stated Green Hills is not the enemy and not to blame, as they disclosed their plans, went through a process, and did as they were told. She understood that some of the neighbors are not happy and Green Hills is trying to make accommodations to honor those wishes. She understood there was a setback issue in the northwest corner, and Green Hills was taking steps to remedy that matter. Green Hills wants to finish the Administrative Building as requested, and wanted to continue to service the Planning Commission Minutes October 28, 2014 Page 8 community, She stated Green Hills was asking for a respectful dialogue and collaborative effort to find an acceptable resolution. Commissioner Tomblin asked staff if the CUP condition of approval in regards to setbacks that was referenced by Ms. Berkowitz, was in fact the correct condition of approval approved at the 2007 Planning Commission meeting. City Attorney Lynch answered that this is the condition of approval that was approved by the previous Planning Commission in 2007. With that, Commissioner Tomblin asked if this condition was the benchmark the Consultant should have used in making her opinion as to whether or not Green Hills was not in compliance with the CUP. City Attorney Lynch answered that this information was provided to the Consultant. She explained that the Consultant's point was that the condition of approval of the CUP could not by itself allow for the change from the Municipal Code requirement of a 40 foot setback, and therefore a Variance was required. Ms. Berkowitz added that Green Hills feels that in 2007 the Planning Commission certainly felt they had the authority to grant this approval to authorize this setback, they did authorize this setback, building permits were obtained based on this condition, and nobody ever said or suggested a Variance was necessary until a couple of months ago. Commissioner Tomblin asked staff if they felt the City had the right to request such a Variance years after -the -fact. City Attorney Lynch stated this is a subject of dispute between the attorneys involved, She explained it is the City's opinion that a Variance should have been required because a Conditional Use Permit can only be required to require a greater setback than required by the Municipal Code, and not a lesser setback. She explained that if the City could simply grant approval to deviate from standard code setback requirements without requiring a Variance, then essentially one would be nullifying the entire chapter of the Municipal Code requiring Variances. Ms. Berkowitz stated that whether or not she felt a Variance was required at that time, the fact is no Variance was ever asked for, requested, or even mentioned until several months ago. She felt that if the City believed at that time that a Variance was necessary, based on exactly the logic the City Attorney was opining, then the City should certainly have asked Green Hills to seek one, and Green Hills would have done so. Commissioner Emenhiser referred to the mausoleum, and asked Ms, Berkowitz how many total plots are available on top of the mausoleum. Planning Commission Minutes October 28, 2014 Page 9 Ms. Berkowitz stated there are 336 spaces, and there are 50 people currently buried there. She stated that there are some single spaces and some double spaces in this area. Commissioner Emenhiser asked Ms. Berkowitz how many rows of plots are on top of the mausoleum. Ms. Berkowitz did not know the answer, however City Attorney Lynch noted on page 4 of the document before the Commission there is a layout of the area, and there appears to be 6 rows. Commissioner James discussed the family plots along the west side of the cemetery. He noted that the staff report says the rules are Green Hills can bury below the ground but not above the ground in this area. He noted that Ms. Berkowitz came back and said Green Hills did not place bodies above ground, as these walls are walls around family plots. He asked Ms. Berkowitz if she was not saying there are urns in the structures within the setback. Ms. Berkowitz answered that she did not believe the presence of urns within those structures changes the nature of the structures, and she is not conceding there are urns as though that is some major issue. She stated that these are family estates that Condition 1 allows, and that there is nothing that talks about whether cremated remains may or may not be in the walls. Green Hills view is that these are family estates that have walls around them in compliance with that condition. Commissioner James asked Ms. Berkowitz if her position was that she did not think the rules that were established which said no above ground burials within the setback applies to this kind of situation. Ms. Berkowitz referred to the language in the condition which says setbacks for above ground structures shall be five feet. She also noted there is another condition which discusses in areas where ground burials are allowed, that there may be family estates. She stated it may be that there are two competing conditions that contain provisions that may not make sense. However, Green Hills understanding is that these are not structures of the type discussed in the condition, but are rather family estates that are allowed. Chairman Leon asked if the proposed operational conditions of approval that are listed are, in general terms, acceptable to Green Hills. Ms. Berkowitz answered that, in general terms, the conditions are acceptable with some exceptions. She noted the final condition that no sales are allowed until a Variance is applied for with the City is still a big discussion item, as well as the comment about the pre -service burial actives that she discussed earlier. Planning Commission Minutes October 26, 2014 Page 10 Commissioner Tomblin asked staff if the Code defined a wall, and more specifically if the code defined the thickness of a wall. Director Rojas stated there is no definition in regards to the thickness of a wall City Attorney Lynch referred to page 22 of the staff report which sets forth the conditions regarding family estates. She read that for the areas in the Master Plan Revision called out for ground burials, the ground burials may include family estates that are evident by low garden walls around their perimeters to enclose these burial estates, or more elaborate tombstones that are built above ground that are no taller than six feet in height except for area 4 where above ground structures are not allowed pursuant to condition. She explained the low garden wall was a demarcation point that was to surround each of the family estates areas and not called out to be a location for the placement of remains. She noted that there is also a trellis in one of the garden setback areas that is well above six feet in height and does not have approval. Commissioner Tomblin asked how thick the garden walls are at the site. Staff showed a photograph of the area, but Acting City Manager Petru noted that staff does not know the thickness of the walls. Vice Chairman Nelson asked what was behind the trellis in the photo, Senior Planner Schonborn answered that behind the area is a trail and then the church. Vice Chairman Nelson stated that what the trellis appears to be doing is preventing the people from the church from looking into the family estates, Senior Planner Schonborn noted there is also a chain link fence which is covered in vegetation. Commissioner Cruikshank stated that as an engineer he had difficulty looking at what Green Hills had presented at the 2007 meetings and what has been built. He questioned if the documents were accurate as he felt they appeared to be deceiving. He stated that if this investigation is going to continue, that he would ask staff to verify what the existing grades were prior to the building being constructed. He stated that if he were a Planning Commissioner in 2007 looking at the provided sections, he would not think any views would be blocked, as everything appears to be above the mausoleum, but that is clearly not the case. Ms. Berkowitz responded that these documents were presented with a staff report as well as additional information from staff. She stated that if anyone had questions at those Planning Commission they were certainly free to ask them. She stated there were plans and documents that then went to the Building Department, and the Building Department verified that all of the plans were in compliance with the Planning Commission's approval. Planning Commission Minutes October 28, 2014 Page 11 Commissioner Cruikshank clarified that in looking at the cross sections that were before the 2007 Commission, he would not have thought there was a problem as it looks as if the building is actually built on an existing hillside, and its not. He did not think the information before the Commission at that time gave them the full picture, and if it had, he felt the Commission would have asked a lot more questions. He stated that as a civil engineer, he was having trouble looking at the documents that were before the 2007 Planning Commission versus what was built. Commissioner Tomblin asked Ms. Berkowitz why Green Hills didn't just come out and say they were going to build a columbarium at these family estates rather than garden walls. He felt that this was part of a credibility issue with Green Hills. Ms. Berkowitz answered that she would happy to research this issue and find out more on the history of these walls, such as how they came about, what they were intended for, and what the interpretations were and provide that information to the Commission in writing. Michael Friedman (representing Vista Verde HOA) touched on the credibility issue with Green Hills, noting he has listened to history being rewritten and recited in a way that was inconsistent with things he had covered in writing with the Commission in the letter he submitted for the August 12, 2014 meeting. He explained that initially the location of the Area 11 mausoleum was going to be directly behind the equipment yard, which is why they say there is an 80 foot setback from the perimeter road. He stated that Green Hills decided to move the location of the mausoleum westward, and as they did so there was suddenly no equipment yard, and the setback went from 80 feet to 8 feet. He stated that the change of location of the footprint of the mausoleum is what triggers the requirement of a Variance, as well as amended CUP and an amended Master Plan. He stated that this was a very significant change for the Vista Verde owners, and they received no public notice of this proposed change. He stated this change was slipped in during the dealings between Green Hills and the Planning Department staff. In addition, at the time it was presented to the Planning Commission at the very last meeting on this topic the change in location was slipped in. He stated the original application did not include this location. He stated he did not want to point fingers to place blame, as he felt mistakes were made by Green Hills, the Planning Commission, and City staff. Mr. Friedman discussed Ms. Berkowitz's comments about the infringement of her client's constitutional rights, and asked about his clients' constitutional rights to privacy and free speech. He stated his clients were trying to protest the location of the funerals in relation to their living rooms and the fact that they could hear ministers giving eulogies without amplified equipment. Yet, Senator Lieu said in a letter that he would prosecute these people for protesting this. He stated that vested rights require good faith reliance on a validly issued permit. He stated the Planning Commission cannot approve a project that violates the City's ordinances. If there is going to be a change from the City's cemetery development criteria, it requires a Variance, which is what staff Planning Commission Minutes October 28, 2014 Page 12 has been telling the Planning Commission since August. Mr. Friedman pointed•out that the terms of the CUP states there can be annual reviews for operations and that the conditions of the CUP can be changed, deleted, or additional conditions can be added. Therefore, Green Hills' argument that their approval is locked in stone and that the Commission's hands are tied is not a valid argument, as the conditions of the CUP say changes can be made annually in order to deal with operational problems, adverse impacts, and he felt mistakes made in the approval process. He felt Green Hills knew how adversely the location of this mausoleum would affect the neighbors, as they could see how close the mausoleum was to the property line and they were getting complaints from the neighbors during construction. He felt Green Hills built subject to the risk of getting caught. Mr. Friedman felt it was time for the Planning Commission to stop delaying action, make a decision, and approve a Resolution. He stated that even a denial of the Resolution his clients were hoping to be approved would be a step forward so that everyone can move on to the next step. He felt this Commission has an obligation to stop all burials, not only on top of the mausoleum in Area 11, but also inside the mausoleum. He pointed out that the only thing before the Commission right now, other than the arguments of the Green Hills attorney, is that Green Hills is not in compliance with their CUP and the structure is not in compliance with the CUP. He stated that between July 30th, when there were forty bodies buried on top of the mausoleum, ten more have been added. He asked how many families need to be subjected by inaction. He asked the burials be stopped until there is final action by the City on the legality of the mausoleum so that so many families may not have to be subjected to possible disinternment because it turns out the bodies were buried in a location that was not lawful. Linda Ott stated she has lived at her condo for over 17 years and is only one of fifty people living at the Vista Verde condos who have been affected by this mausoleum. She stated that the building could not have been built at 80 feet from the property line, or even 40 feet. It had to be 8 feet from the property line. She felt that project is full of errors that have been made as well as great disregard for others. She stated that Green Hills has made a staggering amount of money by being able to sell these roof top plots, and Green Hills knew what they were doing from day one. She stated that not one more person should be buried at this site, and that the City and the residents of Vista Verde deserve better. Debbie Landes noted it has now been a year since the first bodies were placed in this area, and there has been a marked increase in the number of visitors to the area. She added that this is not specifically the issue, as people should be there mourning, the issue is that it is an intrusion into their lives as they have to listen and see this. She stated this has been going on for too long, and action needs to be taken. Her thoughts were that there should be no more burials on the area above the mausoleum and no more sales, noting there was someone up there just today selling a plot. She felt the City should mandate the removal of the roof top and that the Conditional Use Permit does not allow for any more 8 foot setbacks for mausoleums. Planning Commission Minutes October 26, 2014 Page 13 Lane Mayhew stated she has attended every meeting and told the Commission at each meeting that this is her home. Her home was in area she used to feel comfortable, relaxed, and contended in however now she has no privacy. She stated she is very saddened that this has happened, and wants the City to see this issue from the residents' standpoint. Sharon Loveys stated that in February Ray Frew from Green Hills came in to her condominium and admitted to her that he knew the mausoleum was too high, but didn't know what to do about it now. She wondered, if they knew it was going to be too high, why they built it. She stated that if Green Hills can move an entire church through San Pedro onto the Green Hills property, she asked that the mausoleum be picked up and moved to the area east of the maintenance yard. She was very upset about the letter that Ted Lieu had previously sent to the City and called his office to further explain the situation and ask that he send a letter apologizing for the previous letter. Julie Keye stated she has a copy of the first draft of what was the approval of the CUP, and stated it shows the eight foot setback was never mentioned and therefore it was only added at the final draft. She distributed copies of this document. She asked if the Commission felt the 2007 Commission who approved this project were incompetent or careless, and if any of the current Commissioners would have seen what the previous Commission didn't. She felt the Commission should vindicate the past Commissioners and say they had no way of knowing what they were approving because certain facts had not been disclosed. She asked what the Commission is going to do about Green Hills building an illegal building that should never have been approved. She too wanted the mausoleum moved to the area near the maintenance yard. Joanna Jones -Reed stated at the last meeting she spoke to the Commission about the large mausoleum that looks down onto the condominium complex and their recreational areas, which are areas the owners used to enjoy with privacy. She questioned the reasoning of Green Hills decision to impose this gargantuan structure on the condo owners, and how they could do so with legal decent intent. She felt that burial on the top of the mausoleum was an attraction, noting families and children gather, talk loudly, and frolic noisily while putting flowers on the grave sites. She stated they do so unmindful of the residents in the bordering condos, as they hang over the fence and look down into the recreation area and pool area. She felt that those who live beneath the burials have been forgotten. Their harbor views are blocked, their quality of life has been diminished and their psyches are in turmoil. She felt that to have this happen in such a deceitful way is the final rub. Matthew Martin stated he has a power point presentation which he felt will confirm much of what Commissioner Cruikshank mentioned earlier, some of which is contrary to comments made by Ms. Berkowitz. He stated the mausoleum is actually 5.05 feet higher than permitted per condition of approval No. 38 of the CUP, as verified by the building height certification on record with the City. He stated that what was built wasn't what was approved by the Planning Commission, and noted the mausoleum was depicted to the Planning Commission as being built into a hill. He also noted that the Planning Commission Minutes October 28, 2014 Page 14 existing grade is misrepresented as being at least 40 feet high. He showed a photo of the pre-existing grade in front of Vista Verde, which was flat, rather than the reported 40 foot tall with a 45 degree slope in the 2007 Master Plan revision booklet. He also stated the grade was raised by at least 14 feet west of the mausoleum. In addition, he referred to a page in the Master Plan revision booklet which he felt incorrectly states a net cut grading plan west of the mausoleum, which made it appear as if the mausoleum was being built into an existing hillside. He questioned how there could be a net cut when the land was raised by 14 feet. He stated the mausoleum exists in violation of the CUP, without a Variance, and he felt it should be shut down until the Variance is granted and the CUP is amended. He also felt the CUP should be revoked and all of the projects in the 60 year Master Plan should be applied for reviewed on a case by case basis to prevent such an egregious mistake from ever happening again. He felt that if the Planning Commission is unwilling or unable to do this in a timely manner then perhaps this is best referred to the City Council in going forward, Commissioner Tomblin asked staff to comment on the accuracy of the documentation Mr. Martin presented in the power point presentation. Specifically, he noted the documentation that the mausoleum is 5,05 feet higher than permitted in the conditions of approval. Senior Planner Schonborn stated that the documentation accurately reflects condition No. 38 of the CUP. Commissioner Tomblin next referred to the schematic site sections showing the mausoleum was going to be built into the slope, and asked staff if this was what was presented at the Commission meeting in 2007, and to explain what was shown on this schematic. Senior Planner Schonborn recalled this section as being part of the revision booklet that Green Hills submitted, and showed a building being cut into an existing slope. Acting City Manager Petru asked Mr. Martin if he added the red line shown in the drawing, Mr, Martin stated he added the red line and red notes in the drawing. Senior Planner Schonborn added that when discussing a section such as this it does not necessarily represent the entire length or width of the grade, but rather a section through a particular point on the property. Chairman Leon asked if the site section shown if the west wing was part of the building in front of the Vista Verde condos, or if the west wing was in front of the west wing in front of the maintenance yard. Senior Planner Schonborn answered the west wing would extend from approximately the maintenance and to the west of that. Planning Commission Minutes October 28, 2014 Page 15 Commissioner Tomblin asked staff to comment on the area of the drawing that says 25 feet from lowest point of adjacent grade to highest point of mausoleum, and asked if that was a correct representation. Senior Planner Schonborn stated that 25 feet was represented on the schematic at the lower point, but when looking at condition No. 38 it does indicate that the maximum overall height of the building shall be 30 feet. He noted that in looking at the schematic, there is a lower portion at 25 feet, but a higher portion behind it, Commissioner Tomblin asked if the statement in the next slide that the mausoleum is 2,14 feet higher than allowed per the Master Plan revision booklet was a correct statement. Senior Planner Schonborn answered that he was not able to answer that question without looking at the plans, and that the height certification was one of the things the consultant would be following up on with Building and Safety. Commissioner Tomblin asked staff if the mausoleum is higher than what was approved, what would be the remedy. Senior Planner Schonborn answered that in order for Green Hills to keep the structure at the current height they would have to apply to revise their Conditional Use Permit to increase the height. Referring to the schematic site section/west wing, Chairman Leon asked if there was any place where there was a 40 foot elevation difference between the road and the grade, as shown on the schematic. The consultant, Ms. Edmundson, explained that area below the maintenance yard drops approximately 40 feet. In regards to the fill at the site, she explained there was some fill put in that location, but not 14. She stated in reviewing the grading plans it appears there was approximately 6 feet of fill added. Commissioner Tomblin referred back to the schematic site section and asked Ms. Edmundson if at the point on the schematic that shows no fill, that there has been fill placed. Ms. Edmundson explained that the area could have been constructed as shown on the schematic if it were constructed in the central area of the site below the maintenance yard. Where it was constructed, as it is now, there was no hill to construct in to. She stated this schematic does not reflect what is out there. Brian Carter stated at this point the issue is that of credibility. He noted that after a year the Planning Commission has done nothing, the City has done nothing, and Green Hills has offered nothing. He questioned why it is taking so long for any action to take place. Planning Commission Minutes October 28, 2014 Page 16 Nadia Georaiena showed a photo of a page from the Master Plan Revision which showed a 9 foot setback rather than an 8 foot setback. She realized this is a small change, but it is still a discrepancy. She also noted excerpts from the April 24, 2007 minutes in which Senior Planner Schonborn explained the condition dictates that the mausoleum not impair a view, no matter how tall the structure is, and that the height would be measured from the roadway. She also showed photos of large numbers of people at funerals in front of the condos, as well as equipment at the site and the camera at Green Hills that is pointing at the condos. Commissioner Tomblin referred back to the slide showing the 9 foot setback and asked staff what measurement was presented at the Planning Commission in 2007, and what does this slide actually show. Senior Planner Schonborn explained that this slide appears to be an enlarged version of the area that was presented, which is in the revision booklet. He stated that the mausoleum was approved with an 8 foot setback, not 9 feet. Diane Smith did not think any judge or jury would be convinced that Green Hills did not know exactly what their setbacks are and know exactly how to change those setbacks, which is through a Variance procedure. She felt that Green Hills figured that in a big Master Plan such as this that they could sneak the setback in. She felt that a Variance procedure at this point is a waste of everyone's time, and felt that Green Hills should be forced to take the mausoleum down or move it. Lori Brown asked that the mausoleum be removed. John Resich stated that the mausoleum in question goes all the way across with three sections, a west, central, and east wings. He explained that Green Hills only constructed one half of the west wing, and therefore what is seen in the cross-section is one half of a west wing. Green Hills decided not to construct the remaining portion of the west wing due to cost. Commissioner Emenhiser asked Mr. Resich if Green Hills knew what they were going to build and what it was going to do to the residents at the condos. Mr, Resich answered that Green Hills always cares about its neighbors, and does tremendous things for all of the neighbors. He stated that prior to building the mausoleum and prior to the hearing before the Planning Commission, meetings were held at Green Hills for all of the neighbors on a number of occasions to get input from the neighbors. He explained that at these meetings all the neighbors were shown the schematics and the plans. Commissioner Emenhiser asked Mr, Resich if Green Hills is as surprised as anybody that there is this problem with the mausoleum. Planning Commission Minutes October 28, 2014 Page 17 Mr. Resich explained that Green Hills built a ramp that was basically a ramp to nowhere. However, all of the residents knew that the ramp would be going to the top of a building and that there would be burials on top of the building. He stated there was ample opportunity for any resident to go to the City to view the plan. Commissioner Emenhiser asked Mr. Resich, given the passion of this situation, if he had any solutions to the problem at hand. Mr, Resich answered that Green Hills has tried to meet with the residents and has tried to reach a reasonable solution that would mitigate their concerns and at the same time keep the concerns of the family members in mind. He stated that Green Hills is more than happy to meet with the Vista Verde attorney or any members of the condos anytime, anyplace, and anywhere to try to reach a reasonable resolution. He noted that Green Hills has tried to look at screening and they have modified their procedures dramatically. He stated that Green Hills feels the mausoleum came out beautifully except that, in the Vista Verde homeowners' opinion, it is too high. Commissioner James asked Mr. Resich to clarify the amount of fill that was added. He noted that he has heard one person say there was fill added up to 6 feet and another that there was up to 14 feet of fill added. Mr. Resich answered there was fill added to build up the ramp, but did not know how much. He displayed a picture of the mausoleum and noted that the base of the mausoleum is into the ground. Chairman Leon asked Mr. Resich if the road has changed grade. Mr. Resich answered that the road has not changed grade. Commissioner Tomblin showed the schematic site section /west wing, and asked Mr. Resich if this is what was presented to the Planning Commission the evening when this book was presented. Mr. Resich answered that he presumed this was in the Master Plan book. He noted this schematic is a cross section at the very far end of the building. Commissioner Tomblin asked if there was anywhere in the document that discusses a three-phase plan and where the center cut was at. He noted that what is shown in the document is that the entire mausoleum will be built at one time, not in phases, and where the center cut was at. Mr. Resich answered that he was not aware that Green Hills has ever done a building in one phase, He stated he did not recall what exactly was presented at the hearing, however he did not think it was ever presented that Green Hills would build a mausoleum in one large development. He stated this development was intended to be Planning Commission Minutes October 28, 2014 Page 18 done in numerous phases over a long period of time, and was never intended to be done in one phase at one time. Ms. Berkowitz clarified that the booklet was accurate and what was submitted as part of the application to the Planning Department, and staff can tell more of what other axillary materials there were in the staff report and other descriptions and other explanations. She noted that this booklet has always shown an 8 foot setback for the Pacific Terrace Mausoleum, Commissioner Tomblin asked Mr. Resich if the plat map that is filed with the County refers to the area in question as having garden walls or a columbarium. Mr. Resich explained that what the Mapping Act says is that a cemetery has to identify locations of internments, and does not say that it has to be set forth in terms of a columbarium. When the map was recorded Green Hills had their survey company lay out the burials. It is not enumerated as to whether they are columbarium, garden walls, or walls. Commissioner Tomblin asked if these were shown in ground or above ground, Mr. Resich stated he does not recall what is on that specific map. Commissioner Tomblin asked Mr. Resich why Green Hills didn't present this as an above -ground burial vault versus saying they're going to put in garden walls. Mr. Resich explained that to him they are garden wall areas and Green Hills considers these all garden areas. He stated these are not columbariums, as columbariums are something completely different. Commissioner Tomblin pointed out a structure on a photo and asked if it was a columbarium per cemetery law, or a garden wall. Mr. Resich answered that structure is actually a family monument. Commissioner Emenhiser commented that burials and cemeteries are a sensitive issue, and Green Hills is a local business and employer that deserves the City's support. He also felt that the owners in the Vista Verde condominiums have important perspectives and issues that aren't going to be resolved by the Planning Commission. He felt that Green Hills may have a certain legal high -ground, however the condo owners have emotions and moral authority on their side, and therefore this is not going to be a win- win proposition. Commissioner Emenhiser moved to bifurcate the issue of the mausoleum from the potential CUP violations, and that the City issue a moratorium on roof top burials until this issue is considered by the City Council; approve staff conditions (noted beginning on page 25) A, B, and C with the added language "in Planning Commission Minutes October 28, 2014 Page 19 consultation with the Vista Verde Condominium Association"; approve staff conditions D, E, F with the language in the first sentence of F stricken regarding mechanical equipment used for plot preparation and post service plot backfill; approve conditions G, H, I, J, K; eliminate condition L; approve condition M as modified to make the hours consistent at 10 a.m. to 3 p.m.; and approve conditions N, O, and P. Commissioner Tomblin seconded the motion. Commissioner Tomblin made a friendly amendment to the motion to not only put a moratorium on rooftop burials, but to put a moratorium on all further sales until the issue of the mausoleum is resolved. Chairman Leon asked Commissioner Tomblin if he meant the moratorium should be confined to the rooftop and mausoleum area, and not the entirety of Green Hills. Chairman Tomblin clarified that the proposed moratorium on sales would be only for the rooftop and mausoleum area. Commissioner Emenhiser noted that his motion was worded that the moratorium was until this issue was heard by the City Council. Commissioner Tomblin agreed to that wording.. With that, Commissioner Emenhiser modified his motion to accept Commissioner Tomblin's friendly amendment. Commissioner Tomblin noted that his friendly amendment was for a moratorium for the rooftop and the mausoleum area, while it appeared the motion was only for the rooftop. Commissioner Emenhiser understood part of the homeowners issue was with the mausoleum, however he felt that it was just the rooftop area that was a pressing invasion of their privacy. Commissioner Tomblin agreed with Commissioner Emenhiser, Vice Chairman Nelson asked if "considered by the City Council" meant the item is first presented to the City Council or concluded. He noted the Planning Commission has been working this for a year, and the City Council may take just as long, He suggested that be clarified to when the item is first presented on the City Council's agenda. Commissioner Emenhiser agreed, and accepted that as a friendly amendment. City Attorney Lynch suggested that it be clarified to City Council action or until the City Council lifts the moratorium. She felt this would make it more definitive as far as having an enforceable condition. Planning Commission Minutes October 28, 2014 Page 20 Commissioner Emenhiser accepted the City Attorney's suggestion to modify the language to City Council action. Chairman Leon asked the City Attorney to define what City Council action would be. City Attorney Lynch explained that Council action would be adopting a resolution or implementing some decision. Chairman Leon questioned if the six-foot screen (Item K) was something that was desired by the Vista Verde residents. Commissioner Tomblin asked the Chairman if the HOA or the attorney for Vista Verde could address the privacy screen. Mr. Friedman stated that the majority of the residents at Vista Verde HOA are opposed to having the screens blocking any more view than is already being blocked. Chairman Leon asked if the residents liked the tents, but not the screens. Mr. Friedman answered that the HOA is past picking at these conditions. Chairman Leon made a friendly amendment to eliminate Item K from the conditions. Commissioner Emenhiser accepted that friendly amendment, seconded by Commissioner Tomblin. Commissioner James sated that Ms. Berkowitz said that she had a problem with condition F, noting that if a burial service is going to start at 10 a.m. Green Hills needs time to set up chairs and ready the area. He felt that by taking out the rest of F after the first sentence regarding mechanical equipment, that only makes Ms. Berkowitz's concern worse. Chairman Leon felt that F was addressing pre -service plot preparation and post -service plot backfilling were mirror images of one another and felt was addressing the digging part and not the chairs. Vice Chairman Nelson noted that pre -service burial, plot preparation, and post -service plot backfilling are all questions raised the last time. He noted that Green Hills had stated they needed two hours to set up for a 10:00 funeral and needed two hours after the funeral. He felt this condition is restricting Green Hills to a five hour for all of that activity, including the burial, which would restrict all burials to a one hour period between noon and 1:00. He asked if that was the intent of the condition, City Attorney Lynch did not know if that was the intent. She noted that much of this pre - burial preparation could take place the day before in the case of a 10 a.m. service. Planning Commission Mlnutes October 28, 2014 Page 21 Commissioner Gerstner stated that this all started with the Commission dealing with operational issues, and now some code compliance issues have been discovered. He also noted that there is dispute between the City and Green Hills as to whether or not there are non-compliant issues. He asked how this motion resolves that, and if it doesn't he would suggest that the Commission has not concluded its operational review. Commissioner Cruikshank stated there was a comment from the public regarding the cameras that Green Hills has placed at the back of the mausoleum. He did not think that has been addressed by the Commission or the resolution. He did not see the point of Green Hills having a camera aimed at residents and thought there may be a way to add language to have those cameras removed or made inoperable, Commissioner Emenhiser thought that could be handled in a follow-up motion. Commissioner Gerstner stated that, having reviewed the drawings and representations currently before the Commission, he feels a little better than he did previously when he was on the Commission when this project was originally approved. He stated it was not his nature to not understand a project and make errors in understanding the relationship between'the property and adjacent properties, and the grade in particular. He felt that after reviewing the drawings again tonight, he realized he did not misunderstand what was represented in the drawings when this project was approved, he felt that unfortunately those drawings did not represent the facts on the ground. Commissioner Emenhiser's motion was approved, (7-0). Commissioner Gerstner stated he would like the Planning Commission to stay involved with these operational issues and asked if there was a way a motion could be made that would keep the Commission involved in the code enforcement end of this situation for the next several months so that the Commission can better understand what is not compliant and be active in the recommendations for the correction of that. Director Rojas stated that this is an annual review that started in February 2014, and in February 2015 staff will be coming back to the Commission with the next annual review. However, if the Commission would like the review sooner, staff can make it sooner. Commissioner Tomblin did not think it was the job of the Planning Commission to second guess what the wording is of something. He felt things needed to be clarified and not have a continuing problem at Green Hills. Commissioner Tomblin moved to place a moratorium on the new section of Green Hills that was discovered at this meeting on above -ground burials. City Attorney Lynch clarified that the motion would be for a moratorium on above ground burials within the required five-foot setback along the west property line. Planning Commission Minutes October 28, 2014 Page 22 Commissioner Tomblin stated that was correct. Commissioner Gerstner seconded the motion. Commissioner James asked Commissioner Tomblin if he was addressing the existing above -ground burials that have taken place within the five-foot setback, or only future burials. Commissioner Tomblin answered that he was only addressing future above -ground burials in this area. He added that as part of the motion he would add that the moratorium is in place until action is taken by the City Council. Commissioner Gerstner felt that if a moratorium is going to be placed on above -ground burials in the five-foot setback, then it should also include the in -ground burials within the sixteen -foot setback in the northwest corner. In addition, he felt the Commission should continue the modified report from the consultant to a date as soon as possible, and not wait until January. Commissioner Tomblin moved to amend his motion to include a moratorium on in -ground burials in the sixteen -foot setback in the northwest corner, seconded by Commissioner Gerstner. Commissioner Gerstner discussed the Variance, stating that not originally asking for a Variance was a hole in the process, and that hole in the process will come circling back around a year or two from now and there may be a decision made that says the reason that all of this happened is because there was not a procedure to include the Variance. He felt the Commission should include the requirement for a Variance application as part of this discussion. Chairman Leon felt it was clear a variance application was needed for the burials plots in the northwest corner, however he questioned whether or not a Variance is required for the garden walls on the west property line. City Attorney Lynch felt a Variance application is required for both, Commissioner Tomblin amended his motion to include a requirement that a Variance application be submitted by Green Hills to deal with the setbacks of the mausoleum, the northwest corner, and the garden walls. City Attorney Lynch suggested that the language be revised to say a Variance is required for the structures located within five feet of the west property line, other than the garden walls that do not include remains. Commissioner Tomblin agreed, Commissioner James asked that the motion be repeated. Planning Commission Minutes October 28, 2014 Page 23 Commissioner Gerstner stated that the motion is that there be a moratorium on above ground internments within the five foot setback on the west property line until such time as that issue is resolved; there be a moratorium on in -ground internments within the 16 - foot setback in the northwest corner of the property until resolved; and an application for a Variance be made for the above -ground internments within five feet of the property line, for the in -ground internments within the 16 -foot setback in the northwest corner, and for the reduced setback for the mausoleum. Commissioner Cruikshank asked if the moratorium would include both sales and burials. Commissioner Tomblin didn't include the sales was because the problem is the interpretation of the above -ground plots in the setback. Commissioner Gerstner questioned if there should be a time limit, such as 30 days, for the Variance application to be submitted to the City. Vice Chairman Nelson stated he could not support the motion. He explained that if he died he did not want someone saying he couldn't be buried because Rancho Palos Verdes says he can't be buried. He noted that previously the Commission has said they don't want a moratorium, and now they're voting for a moratorium, and he has an issue with that. He felt the City was dabbling in micro -management. Commissioner Tomblin noted that the Commission is not voting on a moratorium for in - ground burials, only above -ground burials in the setbacks. The motion was approved, (6-1) with Vice Chairman Nelson dissenting. Chairman Leon asked staff if there was any restrictions in the code in regards to placing cameras on your property. Director Rojas answered there is nothing in the code prohibiting a property owner from placing cameras on their property. Chairman Leon moved to require Green Hills to cease and desist from having cameras which survey the Vista Verde condominium complex. City Attorney Lynch suggested the Commission focus on the cameras that are pointed directly at Vista Verde from the back of the mausoleum area, as she was unsure if Green Hills has other security cameras along the perimeter of the property. Mr. Friedman stated there are two cameras that Vista Verde residents are concerned with; one on the north wall of the mausoleum, directed northward; the other is on a pole which is east of Vista Verde and is directed northwesterly. Planning Commission Minutes October 28, 2014 Page 24 John Resich stated those two cameras do not look at Vista Verde and are directed to the area below the walls to make sure people do not congregate there at odd hours of the night. The other camera near the maintenance yard is focused down, is not focused on Vista Verde, and is focused on the top of the mausoleum where there have been break-ins. He stated the cameras are needed for security purposes, and he will make sure that the cameras are not focused towards the condominiums. Chairman Leon asked Mr. Resich if he could show staff images from those cameras. Mr. Resich answered that he would be more than happy to show staff images from those cameras. He reiterated that if the City eliminates those cameras they are eliminating security to Green Hills. Commissioner Emenhiser made a friendly amendment to the motion saying that the City acknowledges and appreciates that those cameras are not used to focus on the homes of the Vista Verde condominiums. Commissioner James agreed with Commissioner Emenhiser, stating he accepts Mr. Resich's explanation and noted there is no evidence to the contrary. He noted Mr, Resich has offered to share the images with staff and the Commission will be hearing more about Green Hills in the near future, at which time the cameras can be addressed if it is necessary. Chairman Leon withdrew his motion. Commissioner James stated that several months ago the Planning Commission approved Green Hills request to remove their temporary administrative buildings and build new administrative buildings. The Commission was told that this project had taken years to get to that point, and Green Hills very much wants to complete the project, He had asked the City Attorney during the break if there was any reason the Commission could not agree to that and allow Green Hills to move ahead with this project rather than hold it up because of these compliance issues. Commissioner James moved to allow Green Hills to move forward with the construction of their new administrative buildings, seconded by Commissioner Emenhiser. Commissioner Tomblin agreed that the temporary trailers need to be removed and agreed it was not right to hold up portion of their construction. Chairman Leon asked the City Attorney if the Commission has this authority. City Attorney Lynch believed this could be done since the Commission was giving direction to implement their prior actions, which the Commission is stating is for the betterment of the property. Planning Commission Minutes October 28, 2014 Page 25 The motion to allow Green Hills to move forward with their construction of the new administrative buildings was approved, (7-0). Director Rojas explained that staff will combine these three motions into a Resolution that will be presented to the Commission at their next meeting. Vice Chairman Nelson moved, as per the Planning Commission rules, to hear new business after midnight, seconded by Commissioner Tomblin. Approved, (6-1) with Commissioner Emenhiser dissenting. NEW BUSINESS / 4. Possible rescheduling or cancellation of th ovember 11 and December 23 Planninq Commission meetings. Commissioner Emenhiser moved to directs ff to cancel both the November 11th and December 23rd meetings. Commissioner Gerstner felt the Commissi should meet on November 11th to deal with the business that the Commission just as ed for a Resolution on. Commissioner Emenhiser reminded thfi Commission that at the last meeting the Commission had a discussion on ho ring Veterans Day. The motion failed due to the lack oYa second. Commissioner Emenhiser mooed to cancel the November 25 and December 23, 2014 meetings, seconded by ommissioner Gerstner. Approved, (7-0). APPROVAL OF MINUTES 5. 9. 2014/Min Commissioner Gerstn f moved to approve the minutes as presented, seconded by Commissioner Crurr'kshank. Approved (5-0) with Commissioner Tomblin and Chairman Leon abst4 ning since he was not at that meeting. REAGEND 6. Pre-Acienda' for the meeti The pre -agenda yUas approved as presented. ADJOURNMENT The meeting v s adjourned at 12;10 a.m. Planning Commission Minutes October 28, 2014 Page 26